Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #: 0 FIFTH AVENUE, SUITE 00 SEATTLE, WA 0 0 0 DAVID J. MASUTANI (CA Bar No. 0) dmasutani@alvaradosmith.com ALVARADOSMITH, A Professional Corporation W. Fifth Street, Suite 00 Los Angeles, CA 00 Tel: () -00; Fax: () - LLP ROB ROY SMITH (WA Bar No. ) (Admitted Pro Hac Vice) 0 Fifth Avenue, Suite 00 Seattle, WA 0 Tel.: (0) -00; Fax: (0) - CATHERINE MUNSON, (D.C. Bar No. ) (Admitted Pro Hac Vice) MARK H. REEVES, (GA Bar No. ) (Admitted Pro Hac Vice) 0 th Street, NW, Suite 00 Washington, DC 000-0 Tel.: (0) 0-00 Fax: (0) 0- Attorneys for Plaintiff AGUA CALIENTE BAND OF CAHUILLA INDIANS AGUA CALIENTE BAND OF CAHUILLA INDIANS, v. Plaintiff, RIVERSIDE COUNTY, et al., Defendants, DESERT WATER AGENCY, Defendant-Intervenor. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION Case No.: ED CV -0000-DMG (DTBx) PLAINTIFF S NOTICE OF SUPPLEMENTAL AUTHORITY (Fed. R. Civ. P. (a)()) Hearing Date: Time: Courtroom: Trial Date: N/A Stayed Action Filed: January, 0 US00 0
Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #: 0 FIFTH AVENUE, SUITE 00 SEATTLE, WA 0 0 0 US00 0 Plaintiff Agua Caliente Band of Cahuilla Indians ( Agua Caliente ) hereby submits as supplemental authority the Eleventh Circuit Court of Appeals opinion in Seminole Tribe of Florida v. Stranburg, --- F.d ----, Case No. - (th Cir. Aug., 0), a copy of which is attached hereto. Seminole Tribe presents issues and arguments very similar to those in this case. Like this case, Seminole Tribe involved a federally recognized Indian tribe s challenge to the lawfulness of a state tax assessed against the lessees of real property within the tribe s reservation. See Seminole Tribe, slip op. at. And like Agua Caliente in this case, the Seminole Tribe argued that the state tax was unlawful when assessed against lessees of Indian reservation realty either under U.S.C., the balancing test adopted by the United States Supreme Court in White Mountain Apache Tribe v. Bracker, U.S. (0), or both. See Seminole Tribe, slip op. at -. The Eleventh Circuit agreed with both of the Seminole Tribe s arguments, holding that the district court correctly interpreted U.S.C. to preclude Florida from collecting its Rental Tax on the rent payments made by non-indian lessees of protected Indian reservation land and that even if the statutory exemption did not apply, federal law preempts the Rental Tax in this case under the balancing inquiry outlined in [Bracker]. Seminole Tribe, slip op. at -. In reaching its conclusion, the Eleventh Circuit adopted arguments strikingly similar to those presently before this Court. It applied the Supreme Court s opinion in Mescalero Apache Tribe v. Jones, U.S. (), to hold that [t]he ability to lease property is a fundamental privilege of property ownership and that taxing the privilege of leasing or renting real property is taxing a privilege of ownership and a right in land, just like the tax that the Mescalero Court invalidated. Seminole Tribe, slip op. at, (emphasis in original). The Eleventh Circuit rejected the defendant s reliance on the same inapposite Ninth Circuit precedent relied upon the by the Defendants in this case, noting that [s]ignificantly, neither the Agua Caliente nor Fort Mojave decisions mentioned or apparently considered at all and that
Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #: 0 FIFTH AVENUE, SUITE 00 SEATTLE, WA 0 0 0 Agua Caliente was decided before Mescalero, the Supreme Court case that the Eleventh Circuit found dispositive. Seminole Tribe, slip op. at,. The Eleventh Circuit s reasoning translates directly to this case and supports the conclusion that the possessory interest tax at issue here is barred by U.S.C.. The Eleventh Circuit went on to hold that [e]ven if did not expressly preclude assessment of the Rental Tax the Rental Tax is nonetheless preempted by federal law under the Bracker balancing analysis. Seminole Tribe, slip op. at. As Agua Caliente has urged this Court to do, the Eleventh Circuit held that the recently promulgated federal leasing regulations, including C.F.R..0, are not dispositive, but do provide substantial evidence of the extensive federal regulation of Indian land leasing to inform the Bracker balancing inquiry. Seminole Tribe, slip op. at. This pervasive regulatory scheme, the Eleventh Circuit concluded, evinced a federal interest in the leasing of Indian lands that easily outweighed the State s interest in assessing and collecting a tax for the general raising of revenue to provide generalized services. Id. at. As in the case of, the arguments addressed and decided by the Eleventh Circuit track the positions of the parties before this Court almost exactly, and Seminole Tribe provides strong support for Agua Caliente s contention that the possessory interest tax is preempted by federal law under the Bracker balancing analysis. For all of the foregoing reasons, Seminole Tribe is an instructive, persuasive decision that Agua Caliente respectfully submits for the Court s consideration. DATED: August, 0. ALVARADO SMITH, APC LLP US00 0 By: Rob Roy Smith (Wa Bar No. ) Catherine F. Munson, (D.C. Bar No. )
Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #: Mark H. Reeves, (Ga Bar No. ) David J. Masutani (Bar No. 0) Attorneys for Plaintiff Agua Caliente Band of Cahuilla Indians 0 0 FIFTH AVENUE, SUITE 00 SEATTLE, WA 0 0 US00 0
Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #: 0 FIFTH AVENUE, SUITE 00 SEATTLE, WA 0 0 0 I, Julia Li, declare: PROOF OF SERVICE I am a citizen of the United States and employed in King County, Washington. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 0 Fifth Avenue, Suite 00, Seattle, Washington 0. On August, 0, I served a copy of the within document(s): PLAINTIFF S NOTICE OF SUPPLEMENTAL AUTHORITY by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Seattle, Washington, addressed as set forth below. by placing the document(s) listed above in a sealed United Parcel (UPS) envelope and affixing a prepaid air bill, and causing the envelope to be delivered to a UPS agent for delivery. X by transmitting via electronic transmission the document(s) listed above to the person(s) at the email address(es) set forth below Jennifer A. MacLean JMacLean@perkinscoie.com Benjamin S. Sharp BSharp@perkinscoie.com Mark H. Foster, Jr. MarkFoster@perkinscoie.com PERKINS COIE LLP 00 Thirteenth Street, N.W., Suite 00 Washington D.C. 000-0 Counsel for Defendants County of Riverside Ronak N. Patel rpatel@co.riverside.ca.us Gregory P. Priamos COUNTY OF RIVERSIDE 0 Orange Street, Suite 00 Riverside, California 0 US00 0 PROOF OF SERVICE
Case :-cv-0000-dmg-dtb Document 0 Filed 0// Page of Page ID #:0